[Federal Register Volume 60, Number 100 (Wednesday, May 24, 1995)]
[Rules and Regulations]
[Pages 27407-27409]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-12644]



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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AF03


Line of Duty

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends Department of Veterans Affairs (VA) 
adjudication regulations concerning service connection for disabilities 
incurred or aggravated in line of duty. This amendment is necessary to 
implement legislation which precludes the establishment of service 
connection for any condition that results from the abuse of alcohol or 
drugs by the person on whose service benefits are claimed.

EFFECTIVE DATE: November 1, 1990.

FOR FURTHER INFORMATION CONTACT: Lorna Weston, Consultant, Regulations 
Staff, Compensation and Pension Service, Veterans Benefits 
Administration, Department of Veterans Affairs, 810 Vermont Avenue, 
NW., Washington, DC 20420, (202) 273-7210.

[[Page 27408]] SUPPLEMENTARY INFORMATION: Section 8052 of the Omnibus 
Budget Reconciliation Act of 1990 (OBRA 1990), Pub. L. 101-508, amended 
38 U.S.C. 105(a), 110 (recodified as 1110) and 331 (recodified as 1131) 
to provide that injuries or diseases resulting from the abuse of 
alcohol or drugs by the person on whose service benefits are claimed 
will not be considered incurred in line of duty and thus are not 
compensable by VA as service-connected disabilities.
    On March 1, 1994, VA published a proposal in the Federal Register 
(59 FR 9719) to amend its adjudication regulations at 38 CFR 3.1 and 
3.301 to provide that injuries or diseases incurred or aggravated 
during service as a result of the abuse of alcohol or drugs will not be 
considered incurred or aggravated in line of duty for purposes of 
service connection. Interested persons were invited to submit written 
comments, suggestions or objections on or before May 2, 1994. We 
received two comments: One from the Disabled American Veterans and one 
from a concerned individual.
    One commenter expressed agreement with the amendment as proposed 
and suggested no changes.
    The other commenter recommended that VA include within the body of 
the regulations the statutory direction that the amendments apply only 
to claims filed after October 31, 1990. We concur with that 
recommendation and have added appropriate language to the regulations 
at 38 CFR 3.1(m) and 3.301(a).
    The same commenter noted that the Veterans Benefits Administration 
Manual M 21-1 and VBA Circular 21-90-12 provide that alcohol- or drug-
related disabilities will be considered service-connected if alcohol 
abuse is a manifestation of a service-connected disability such as post 
traumatic stress disorder, or if drug abuse arose out of therapy for a 
service-connected disability. He stated that these are substantive 
rules that should be included in the amendment to Sec. 3.301.
    The manual and circular provisions which the commenter cited are 
examples of the application of 38 CFR 3.310(a), which provides that 
disability that is proximately due to or the result of a service-
connected disease or injury shall be service-connected and that when 
service connection is thus established for a secondary condition the 
secondary condition shall be considered a part of the original 
condition. In circumstances such as those raised by the commenter, VA 
is required by Sec. 3.310(a) to consider conditions that it has 
determined are secondary to a service-connected condition to be part of 
that service-connected condition rather than a result of the abuse of 
alcohol or drugs. Since that requirement is established elsewhere in 
VA's regulations, it is unnecessary to incorporate those provisions 
into Sec. 3.301.
    The same commenter, citing the Diagnostic and Statistical Manual of 
Mental Disorders (Third Edition--Revised, 1987), (DSM-III-R), published 
by the American Psychiatric Association, stated that, at the time 
Congress enacted OBRA 1990, alcohol abuse had an established 
definition. The commenter implied that this definition was so well 
established as to constitute the meaning Congress intended when it 
enacted OBRA 1990, and suggested that, to the extent that VA's 
definition of alcohol abuse is inconsistent with the established 
definition, VA's definition exceeds the authority of the Secretary of 
Veterans Affairs to promulgate regulations. The commenter suggested 
that the definitions of alcohol abuse and drug abuse in DSM-III-R be 
adopted by VA.
    While the DSM-III-R definitions may have been widely accepted in 
the medical community, they were intended for diagnostic and 
statistical purposes. There is no evidence to suggest that Congress had 
these diagnostic criteria in mind at the time OBRA 1990 was enacted. 
Rather, Congress clearly intended that no service-connected benefits 
would be granted for disability or death resulting from drug or alcohol 
abuse, whether from pathology due to long-term use, or from traumatic 
effects related to acute intoxication.
    Nevertheless, we have further considered the meaning of the terms 
alcohol abuse and drug abuse in OBRA 1990. Congress did not define 
either term in OBRA 1990, and the legislative history does not indicate 
that Congress intended the terms to mean anything other than their 
commonly understood meanings. Therefore, we have concluded that 
Congress intended these terms to have their ordinary, contemporary, 
common meanings. We think that the definition of drug abuse in the 
proposed rule accurately reflects Congress' intent and, accordingly, 
have adopted the proposed definition in the final rule. However, we 
think that the definition of alcohol abuse in the proposed rule does 
not accurately reflect Congress' intent, since that definition differs 
from the common meaning. Therefore, we have changed the definition of 
alcohol abuse in the final rule to more accurately reflect the meaning 
we think Congress intended, i.e., ``the use of alcoholic beverages over 
time, or such excessive use at any one time, sufficient to cause 
disability to or death of the user.'' Under these circumstances, the 
definition of alcohol abuse constitutes an interpretative rule and need 
not be published as a proposed rule for notice and comment.
    VA appreciates the comments submitted in response to the proposed 
rule which is now adopted with the changes noted above.
    The Secretary hereby certifies that this final rule will not have a 
significant economic impact on a substantial number of small entities 
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. This amendment will directly affect VA beneficiaries, but will not 
directly affect small business. Therefore, pursuant to 5 U.S.C. 605(b), 
this final rule is exempt from the initial and final regulatory 
flexibility analyses requirements of sections 603 and 604.
    This regulatory action has been reviewed by the Office of 
Management and Budget under Executive Order 12866.

(The Catalog of Federal Domestic Assistance program number is 
64.109).

List of Subjects in 38 CFR Part 3

    Administrative practice and procedure, Claims, Health care, 
Individuals with disabilities, Pensions, Veterans.

    Approved: May 12, 1995.
Jesse Brown,
Secretary of Veterans Affairs.

    For the reasons set out in the preamble, 38 CFR part 3 is amended 
as set forth below:

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity 
Compensation

    1. The authority citation for part 3, subpart A, continues to read 
as follows:

    Authority: 38 U.S.C. 501(a), unless otherwise noted.


Sec. 3.1  [Amended]

    2. In Sec. 3.1(m), in the first sentence, remove the period at the 
end of the sentence and insert, in its place, ``or, for claims filed 
after October 31, 1990, was a result of his or her abuse of alcohol or 
drugs.''


Sec. 3.301  [Amended]

    3. In Sec. 3.301(a), at the end of the paragraph, remove the period 
and insert, in its place, ``or, for claims filed after October 31, 
1990, the result of his or her abuse of alcohol or 
drugs.'' [[Page 27409]] 
    4. In Sec. 3.301(c), revise the heading to read as follows: 
``Specific applications; willful misconduct.''
    5. In Sec. 3.301(c)(3), after the third sentence, add a new 
sentence in parenthesis to read as follows: ``(See paragraph (d) of 
this section regarding service connection where disability or death is 
a result of abuse of drugs.)''; and in the fourth sentence, remove the 
words ``Similarly, where'' and add, in their place, the word ``Where''.
    6. In Sec. 3.301, add a new paragraph (d) and an authority citation 
to read as follows:


Sec. 3.301  Line of duty and misconduct.

* * * * *
    (d) Line of duty; abuse of alcohol or drugs. An injury or disease 
incurred during active military, naval, or air service shall not be 
deemed to have been incurred in line of duty if such injury or disease 
was a result of the abuse of alcohol or drugs by the person on whose 
service benefits are claimed. For the purpose of this paragraph, 
alcohol abuse means the use of alcoholic beverages over time, or such 
excessive use at any one time, sufficient to cause disability to or 
death of the user; drug abuse means the use of illegal drugs (including 
prescription drugs that are illegally or illicitly obtained), the 
intentional use of prescription or non-prescription drugs for a purpose 
other than the medically intended use, or the use of substances other 
than alcohol to enjoy their intoxicating effects.

(Authority: 38 U.S.C. 105(a))

[FR Doc. 95-12644 Filed 5-23-95; 8:45 am]
BILLING CODE 8320-01-P